S. 3100 Is BAD For Pennsylvania

On Tuesday, July 5, the ACLU of Pennsylvania sent letters to Senators Pat Toomey and Bob Casey asking them to oppose proposed anti-immigrant legislation.

READ THE LETTERS

S. 3100 would punish 32 Pennsylvania counties for upholding constitutional safeguards against unlawful detention. Unfortunately, Pennsylvania’s own senator, Patrick Toomey, is the sponsor of the bill.

Senator Toomey has derided Philadelphia for policies that keep local law enforcement officials out of the deportation business. But deportation is a job that should be left to the federal government. When local police and sheriffs take on immigration enforcement duties, trust and cooperation with immigrants is eroded, undermining public safety.

While Philadelphia may make for a convenient target of criticism, at least 32 Pennsylvania counties — like hundreds of other counties across the U.S. — rightly require Immigration and Customs Enforcement (ICE) to get a warrant like any other law enforcement agency if they want to detain individuals, for deportation purposes. S. 3100 would require local police to share information about immigrants in their jails, even if ICE does not have a warrant for their arrest.

As punishment for noncompliance, S. 3100 would take over $62 million in federal funding away from these Pennsylvania counties, funds that pay for low-income housing, disaster recovery, public works and economic development. This is bad for Pennsylvania.

Take action on behalf of Pennsylvania and let your senators know that this bill is no good.

Thank You, Santa’s Helpers!

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

Last month, I blogged about the 41 children preparing to spend Christmas incarcerated at a family immigration detention center in Berks County. In past years, these children would have been released to stay with relatives in the U.S. while their immigration cases proceeded. But because of a new misguided and illegal federal policy of locking up asylum-seeking families as a means of deterring other Central Americans from seeking refuge in the U.S., dozens of children spent the holidays behind bars.

On December 16, the ACLU filed a lawsuit challenging the Obama administration’s no-release policy. In the days after that, I worked with the Berks facility to set up an online holiday toy drive for the children detained there—just in case Santa Claus couldn’t make it past security.

You—our members and supporters and colleagues and friends—responded quickly and generously to the toy drive. Less than 24 hours after I set up the gift registry, you had purchased enough toys for every child at Berks to receive a present on Christmas. Within a few days, you had bought every last toy on the registry, ensuring that every kid at Berks would have several presents on Christmas morning. And you didn’t stop there—you asked what else they needed. So after checking with the facility, we added some more games and winter clothes to the registry. And you bought many of those, too.

The staff at the Berks Center tell me that they took great pleasure in wrapping all of the gifts you donated and delivering them to the children on Christmas morning, and that the kids loved their presents. The staff asked me to pass along their thanks. The Center’s privacy policies prohibit them from sharing any photos with the children’s faces, but today they passed along a photo from Christmas morning of one of the facility’s littlest detainees.

Thank you for brightening his Christmas by giving him new toys of his own. Your support—not only of the toy drive, but of all of our work—is humbling and inspiring. We’ll keep fighting until the children at Berks have the gift of freedom, too.

Molly-Tack-HooperMolly Tack-Hooper started at the ACLU of Pennsylvania as a volunteer legal fellow in 2010-2011 and returned in 2013 as a staff attorney focusing on civil liberties issues arising in Central Pennsylvania and on immigrants’ rights.

Does Santa Claus visit immigration detention facilities?

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

Santa-Claus-Sad-icon

This holiday season, there are 41 children incarcerated at Berks County Residential Center, an immigration detention center in Leesport, Pennsylvania. Some of these little detainees are toddlers. The youngest is just one year old. This year they’ll find out whether Santa can make it past security at a federal detention center.

Many of these children came to the United States with their mothers seeking refuge from the horrific violence that they suffered in Central America, and have already passed a “credible fear” determination, meaning there is a good chance that they will be granted asylum, giving them legal status to stay in the U.S.

In past years, the Department of Homeland Security typically would have released these families to stay with relatives in the United States as their immigration cases proceeded. Releasing asylum-seekers makes sense; Toy Drive families seeking asylum don’t need to be put in jail. Rarely do these women and children pose a threat to anyone, and they have every incentive to show up for court to pursue their asylum claims.

But now, instead of releasing these families as they await their asylum hearings, DHS chooses to imprison all of them, shipping them off to one of the newly created federal family detention centers around the country—the Berks Center in Pennsylvania, another facility in Karnes, Texas, and a brand new, larger facility in Dilley, Texas.

The Obama administration adopted this policy of categorically denying release to all asylum-seekers from Central America as “an aggressive deterrence strategy” after an increase this past summer in the number of Central American mothers and children coming to the United States. The idea is that keeping these mothers and children locked up for the duration of their immigration proceedings—no matter how unnecessary, no matter how unfair, no matter how traumatizing—will deter other Central American families from seeking refuge in the United States, reducing the overall number of Central American asylum-seekers. In other words, the 41 children at Berks are pawns.

The ACLU filed a class action lawsuit Tuesday challenging DHS’s “no-release” deterrence policy as a violation of federal immigration law and the U.S. Constitution’s guarantee of due process, both of which prohibit the blanket detention of asylum-seekers for deterrence purposes.

But for the 41 children currently detained at Berks County Residential Center, litigation is far too slow a fix when Christmas is just days away. The children who are old enough to write have written letters to Santa, hopeful that he can bring them a little bit of Christmas joy behind bars.

Rather than leave matters to Santa, I reached out to Carol Anne Donohoe, an immigrants’ rights advocate who represents many of the families detained at the Berks Center, who connected me with the Center’s Recreation Supervisor, Sandy Schlessman, to help Sandy organize a toy drive for the 41 children at Berks. The Berks Toy Drive registry contains a range of age-appropriate gifts approved by the detention center and reflect what many of the children at Berks asked for in their letters to Santa. There is also a toy drive for the children detained at Karnes, Texas, organized by a local church in partnership with Immigration & Customs Enforcement.

Word has already spread around the Berks Center that Santa is coming, and the children are very excited, so please give generously to help brighten their holiday season. At ACLU offices in New York, California, Washington, DC, Texas, and here in Pennsylvania, we’ll be doing our part this December—and all the rest of the year—to ensure that the Berks Center and other federal family detention centers don’t have to become regular stops on Santa’s route.

Molly-Tack-HooperMolly Tack-Hooper started at the ACLU of Pennsylvania as a volunteer legal fellow in 2010-2011 and returned in 2013 as a staff attorney focusing on civil liberties issues arising in Central Pennsylvania and on immigrants’ rights.

A New Dawn for Immigrants?

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

(Obama Intends to Regularize Status of Millions Illegal Immigrants in America. credit: http://thespeaker.co/)

(credit: http://thespeaker.co/)

Last week, President Obama rolled out significant changes to his administration’s immigration enforcement program with a televised announcement and a series of Department of Homeland Security (“DHS”) memos detailing the changes. Since then, immigrants’ rights advocates have been poring over the memos trying to determine whether they foretell a new dawn for immigration enforcement or more of the same misguided and destructive immigration enforcement practices that for years have torn apart families at an alarming rate.

Not all of the announcements were good. The President announced that he will continue to pour resources into policing the southern border by further bulking up the largest law enforcement agency in the country—Customs and Border Protection—which has an appalling track record of violence without accountability.

But the new policies do contain much to celebrate, like executive actions that could temporarily shield more than 4 million undocumented immigrants from deportation by expanding the Deferred Action for Childhood Arrivals program and offering new relief from deportation for certain immigrant parents with children who are U.S. citizens or lawful permanent residents.

Among other positive changes, President Obama announced policies ending the controversial Secure Communities (“S-COMM”) program and constraining immigration authorities’ much-criticized use of ICE detainers. S-COMM is dead, to be replaced by something called the Priority Enforcement Program (“PEP”). It remains to be seen, however, just how much the problems that plagued S-COMM will persist under PEP.

Havoc Wreaked by S-COMM and Detainers
Secure Communities was, at its core, a program of collaboration between federal immigration authorities and local law enforcement agencies that used local resources to identify people subject to deportation. Under Secure Communities, every time anyone was arrested and booked by a police agency, their fingerprints were run through DHS’s immigration database. The lynchpin of S-COMM was the ICE detainer (or “immigration hold”), a request from ICE to a local law enforcement agency to imprison someone in custody past the time when they would otherwise be released from the criminal justice system in order to give ICE extra time to investigate the person’s immigration status. Although Secure Communities was intended to focus immigration enforcement resources on people with serious criminal convictions, in reality, S-COMM ensnared non-citizens from all backgrounds, fueling the mass deportation of valuable members of society and ripping apart families. Deportations reached record highs on President Obama’s watch.

The ACLU’s Detainer Litigation and Advocacy
The ACLU has long had concerns about the myriad civil liberties problems posed by S-COMM and ICE detainers. In March 2014, I testified at a Philadelphia City Council hearing that ICE detainers are often issued without any legal basis, can lead to racial profiling, and undermine trust in the police, threatening everyone’s safety.

In Pennsylvania, the kind of routine collaboration between local law enforcement and federal immigration officers engendered by S-COMM led to the illegal 3-day imprisonment in Lehigh County Prison of Ernesto Galarza, a U.S. citizen born in New Jersey, on an immigration detainer. After he was arrested on criminal charges (of which he was later acquitted), local police racially profiled him as being an undocumented immigrant and notified ICE of his arrest. ICE then issued a detainer to give itself more time to investigate Mr. Galarza’s immigration status. So when Mr. Galarza posted bail, instead of being released and reunited with his family, he was held for 3 more days, without any explanation or any opportunity to demonstrate his U.S. citizenship.

The ACLU and ACLU of Pennsylvania sued, and on March 4, 2014, won a huge victory when the Third Circuit became the first federal Court of Appeals to rule that local agencies do not have to comply with ICE detainer requests, and can be held liable for their role in causing an unlawful detention when there is no constitutionally valid basis for the detainer. In light of that ruling, in April 2014, Lehigh County paid Mr. Galarza $95,000 to settle his case and agreed to adopt a policy of no longer honoring ICE detainers without a court order.

Shortly after the Galarza ruling, Mayor Nutter issued an executive order directing Philadelphia facilities not to honor any ICE detainer requests without a judicial warrant. In August 2014, the ACLU-PA, working with PICC, Juntos, New Sanctuary Movement of Philadelphia, and NDLON, wrote to county officials all over the commonwealth to alert them to the court ruling in Galarza and urge them to adopt local policies of declining ICE detainer requests that are not accompanied by a judicial warrant. At last count, 40% of the counties in Pennsylvania reported that their facilities will no longer honor ICE detainer requests without a court order.

The End of S-COMM and Routine Detainers
Last week, the President acknowledged the many failings of S-COMM and the problematic use of detainers and discontinued Secure Communities:

“[S-COMM] has become a symbol for general hostility toward the enforcement of our immigration laws. Governors, mayors, and state and local law enforcement officials around the country have increasingly refused to cooperate with the program, and many have issued executive orders or signed laws prohibiting such cooperation. A number of federal courts have rejected the authority of state and local law enforcement agencies to detain immigrants pursuant to federal detainers issued under the current Secure Communities program.”

Under the new executive action, S-COMM will be replaced by the “Priority Enforcement Program” (or “PEP”). S-COMM and PEP have some features in common. Importantly, fingerprint-sharing of all arrestees with DHS for immigration enforcement purposes will continue under PEP—without any limitations. And DHS can still ask local law enforcement agencies and jails for notification when a non-citizen is scheduled to be released from local custody. But when it comes to actually issuing detainers and taking non-citizens into federal custody for immigration proceedings, PEP appears to constrain federal agents in ways that S-COMM did not.

According to DHS, under PEP, ICE will seek to transfer from local custody into immigration detention only certain “priority” non-citizens, including anyone believed by ICE to pose a threat to national security, as well as people engaged in terrorism or gang activity or convicted of certain crimes (any non-immigration-related felonies or a significant misdemeanor or 3 or more non-immigration-related misdemeanors). Further, under PEP, ICE is only permitted to issue detainers asking for a local agency to detain someone for ICE in “special circumstances” and only if the person is subject to a final order of removal or ICE has “other sufficient probable cause” to believe that the person is deportable.

DHS has yet to clarify the exact contours of ICE’s marching orders under these new policies; the policy memos are susceptible to several interpretations. And only time will tell how PEP is actually implemented. But the President’s acknowledgement that our immigration system badly needs fixing and that S-COMM was a failure—and his efforts to try to fix what he can—are welcome signs of change.

Molly-Tack-Hooper Molly Tack-Hooper started at the ACLU of Pennsylvania as a volunteer legal fellow in 2010-2011 and returned in 2013 as a staff attorney focusing on civil liberties issues arising in Central Pennsylvania and on immigrants’ rights.

U.S. Army Veteran Jailed by Immigration Authorities for Nearly 1,000 Days

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

York County Prison: Male Wing (source: www.informationng.com)

York County Prison: Male Wing (source: www.informationng.com)

Jose Juan Chavez-Alvarez had a day in court on Tuesday — or his attorneys did, anyway. He wasn’t there, because he has been detained by immigration authorities at York County Prison for 2 years, 5 months, and 15 days (and counting) without a bond hearing while his complex immigration case makes its way through the courts.

Mr. Chavez-Alvarez is a far cry from a “flight risk.” He came to the U.S. as a toddler nearly 40 years ago, and became a lawful permanent resident of the U.S. at 15. He honorably served in the U.S. Army for nearly a decade, earning several medals and achievement certificates. Today Mr. Chavez-Alvarez is a father to two teenage U.S. citizen sons, and he owns his home in Central Pennsylvania.

In 2000, while he was stationed in South Korea in the military, he was court-martialed and pled guilty to four non-violent military offenses related to a sexual encounter he had with a female service member following a night of drinking. He served his sentence of thirteen months for these military offenses. His criminal record is otherwise spotless.

Nonetheless, on June 5, 2012, ICE agents showed up at his home early in the morning to arrest him, alleging that he was deportable because of his military infractions more than a decade earlier.

He has been locked up at York County Prison ever since that morning. Mr. Chavez-Alvarez has now been in immigration detention for 898 days — more than twice as long as he spent in jail for his military offenses.

His immigration case is a strong one. There are several reasons why, his lawyer argues, he shouldn’t be deported.

So why is someone like Mr. Chavez-Alvarez with strong communities ties, who is not facing criminal charges or serving a sentence, and who may be fully entitled to stay in the U.S. languishing in jail?

A federal “mandatory detention” statute requires certain non-citizens in removal proceedings to be imprisoned while their immigration cases proceed. Because of this “mandatory detention” requirement, Mr. Chavez-Alvarez hasn’t had a bond hearing since he was whisked out of his home on the morning of June 5, 2012. He’s never had a chance to put up bail or prove that he’s not going to skip town before his immigration proceedings conclude.

This “mandatory detention” statute that has kept Mr. Chavez-Alvarez in immigration detention for nearly two and a half years now was never intended to authorize this kind of prolonged detention, said the Court of Appeals in 2011 in Diop, another ACLU case. To avoid constitutional problems, the court interpreted the statute to only authorize detention without a bond hearing for a “reasonable” initial period of detention. As the Supreme Court has noted, the length of detention contemplated by Congress when it passed this “mandatory detention” statute was between 1.5 and 5 months; when detention is prolonged beyond that threshold, it becomes increasingly constitutionally “suspect.”

But since the 2011 Diop decision, the government has not agreed to give a single non-citizen a bond hearing – even though many of them have been in immigration detention for years.

On Tuesday, Mr. Chavez-Alvarez’s lawyer and the ACLU as amicus curiae (“friend of the court”) urged the Court of Appeals to provide guidance to the lower courts and the government by ruling that there should be a presumption that immigration detainees get a bond hearing after 6 months of mandatory detention so a court can make an individualized determination about whether it is necessary to continue imprisoning people like Mr. Chavez-Alvarez during his legal proceedings.

As the ACLU told the court on Tuesday, because immigration proceedings are often long, drawn-out affairs – especially where the non-citizens have novel or complex claims about their right to remain in the U.S. – prolonged mandatory detention often discourages non-citizens from pursuing avenues of relief from deportation that they’re entitled to, because asserting your rights means spending years in jail – even if you win. Non-citizens shouldn’t have to accept years of imprisonment without a bond hearing as a condition of asserting their legal rights. No one should.

Arguing Tuesday on behalf of Mr. Chavez-Alvarez was former ACLU-PA staff attorney Valerie Burch. Michael Tan, from the national ACLU Immigrants’ Rights Project, argued on behalf of the ACLU and ACLU of Pennsylvania as amici curiae.

Molly-Tack-HooperMolly Tack-Hooper started at the ACLU of Pennsylvania as a volunteer legal fellow in 2010-2011 and returned in 2013 as a staff attorney focusing on civil liberties issues arising in Central Pennsylvania and on immigrants’ rights.

‘Letters: Bykofsky’s ideas skate on thin ICE’ via Philly.com

On Friday, July 18, 2014, Daily News Columnist Stu Bykofsky wrote an article entitled ‘Welcome, foreign felons.’ The following Letter to the Editor is in response to that article:

NO ONE should be held in jail for days on end because some federal agent wants to “run checks” on them to see whether it would be lawful to arrest them for something. In fact, the Fourth, Fifth and 14th Amendments to our Constitution prohibit that kind of tyrannical police-state behavior.

Yet, Stu Bykofsky, in his column “Welcome, foreign felons,” takes Mayor Nutter to task for upholding this basic American principle. The city has a policy, in place since mid-April, of refusing to honor non-binding “detainer” requests lodged by federal immigration authorities on prisoners in city jails whom our criminal justice system has determined should be released. In the court case – won by the ACLU – that determined that these ICE “detainers” are legally unenforceable, the plaintiff was a U.S. citizen, born in New Jersey, whom Allentown police wrongly suspected of being an undocumented noncitizen. As a result, he spent over three extra days in jail, despite having already made bail, while ICE got around to figuring out the police were wrong. (As it turned out, he was mistakenly in jail in the first place; when his trial came up, he was acquitted of the charge for which he had been arrested.)

Philadelphia’s policy avoids travesties like that one (and the resulting liability) by refusing to keep people in jail at the mere request of ICE. Under the policy the city, quite properly, will hold someone for pickup by ICE only if the feds have gotten a warrant for their deportation or arrest.

Instead of engaging in baseless fear-mongering, Bykofsky should be praising the city administration for standing up for everyone’s equal civil rights. A country where any low-level government official can tell the police to jail you for days on mere suspicion, or for “investigation,” is not the country described in the Constitution of the United States.

Peter Goldberger
President
ACLU of Greater Philadelphia

Reggie Shuford
Executive Director
ACLU of Pennsylvania

Read the original article, including a letter from Everett Gillison, Chief of Staff/Deputy Mayor of Philadelphia, at Philly.com

Immigrants in the Shadows: Warehousing Noncitizens in Our Nation’s For-Profit Prison System

By Scott Kelly, Columbia Law School Social Justice Fellow, ACLU of Pennsylvania

CAR

By definition, a “for-profit” corporation has only one goal: to make money for its shareholders. For Coca-Cola, that means selling cans of soda. For ExxonMobil, that means drilling oil wells.

And for The GEO Group, Inc., that means putting immigrants behind bars.

You heard that right: The same way Coca-Cola profits when someone buys a two-liter, GEO Group makes money when an immigrant is thrown into prison—often for no other crime than crossing the border in search of a better life.

You see, GEO Group is one of three private companies that run the 13 federal prisons for nonviolent immigrant criminals, called “Criminal Alien Requirement” (CAR) prisons. And one of GEO Group’s CAR prisons—a 1,495-bed low security facility called Moshannon Valley Correctional Center—is located right here in Philipsburg, PA.

That’s why the report that the ACLU and its Texas affiliate released today is a must-read. Representing the culmination of four years of investigation, Warehoused and Forgotten: Immigrants Trapped In Our Shadow Private Prison System describes the rampant prisoner abuse and lack of accountability at five CAR prisons in Texas—including two operated by GEO Group.

The report catalogues in grim detail what happens when the profit motive collides with our penal system: prisoners languish in overcrowded, chronically understaffed facilities, while GEO Group and its ilk rake in billions in annual revenue and millions in executive payouts.

And the problem is only getting worse: dating back to 2009, more people have entered the federal prison system for immigration offenses than for violent, weapons, and property offenses combined.

Here are some of the most startling findings from the report:

    • Excessive Use of Isolation

      The Federal Bureau of Prisons (BOP) routinely negotiates contracts with private prison companies that incentivize excessive use of isolation cells (called “the SHU”). For example, the contracts for the two CAR prisons in Texas operated by GEO Group—Big Spring and Reeves—contain clauses requiring that these overcrowded prisons set aside 10% of their bed space as isolation cells. To compare: confining 10% of the prisoners in CAR facilities to isolation represents almost twice the rate of isolation in facilities run by the BOP itself, even though the majority of the BOP-run prisons are higher-security.

      This isolation quota encourages the excessive—and often arbitrary or malicious—use of the SHU. At Big Spring, staff frequently placed prisoners in isolation for months at a time while they carried out never-ending “investigations” into disciplinary infractions. A recent wrongful death suit filed against the Reeves CAR prison even alleged that the facility had a policy of using the SHU to punish prisoners who repeatedly asked for medical attention or filed grievances. The lawsuit pointed to this policy as responsible for the death of a prisoner named Reyes Garcia Rangel, who committed suicide after being confined to the SHU and denied his psychotropic medications.

    • Limited Access to Rehabilitative Programming

      CAR prisons are not contractually required to provide the programming, drug treatment, and work opportunities offered in most federal prisons, in spite of the fact that studies overwhelmingly show the efficacy of such programs. As a result, prisoners housed in these facilities often face years of boredom and idleness—years that could have been spent bettering their lives and preparing for life after release.

      BOP justifies this policy by reasoning that rehabilitating people who face deportation wastes resources. Not only is this thinking callous but it’s also deeply flawed: many prisoners in CAR facilities may have a legal right to stay in the country, including valid claims for asylum and derivative citizenship. And assuming that deported immigrants won’t try to enter the country again ignores the strong pulls of economics and family that brought many people to America in the first place.

    • Inadequacy of Medical Care

      The report documents the widespread failure of CAR prisons in Texas to meet the medical needs of prisoners. A lack of oversight and accountability has combined with cost-cutting pressures to create a perfect breeding ground for medical negligence. In one extreme example detailed in the report, the prison staff at Reeves placed an epileptic prisoner in the SHU because the facility didn’t have an infirmary. The man, Jesus Manuel Galindo, pleaded continually with guards to adjust his medication but reported in letters to family that the “medical care here is no good and I’m scared.” Tragically, the day after Mr. Galindo wrote those words, he went into a seizure and perished unattended in his cell.

      In a series of internal documents, BOP officials even acknowledged the systemic inadequacy of medical care at Reeves, writing that the “[l]ack of healthcare has greatly impacted inmate health and wellbeing” and that the private prison had mismanaged the treatment of HIV patients. Similarly, prisoners at Big Spring complained of the chronic understaffing of medical personnel. Aware of many of these problems, BOP officials nonetheless chose to renew the contracts of all CAR facilities in 2010, because the Bureau didn’t want to lose “credibility as a solid customer” of the private prison industry.

    • Lack of Accountability and Transparency

      CAR prisons aren’t subject to the oversight and transparency that applies to other federal prisons. For example, under the Freedom of Information Act, federal agencies like BOP must disclose their records to the public upon request. But CAR prisons are exempt from FOIA, meaning that the most basic details about how these facilities operate are often unknown. The BOP even fights to shield the information it has on CAR prisons from the public, citing FOIA Exemption 4, which permits withholding the “trade secrets” of private companies.

      Nor do many BOP policies—called “program statements”—apply to CAR prisons, including those related to important issues like the filing of grievances and attorney visits. This leaves companies like GEO Group to set their own policies—the proverbial fox guarding the hen house. It’s unsurprising that prison officials turn around and use this discretion to further restrict access to their facilities—for example, by prohibiting NGOs from touring their prisons or conducting interviews.

Read the full report and you’ll understand why the practice of contracting out prisoners to for-profit companies must stop. The ACLU is also calling for an end to the criminalization of immigration, which has served only to line the pockets of the for-profit prison industry at the expense of taxpayer dollars and the dignity of immigrants. Short of ending these practices, the federal government should at the very least subject CAR prisons to greater transparency and oversight.

The ACLU of Pennsylvania is investigating the CAR prison here in our own state: GEO Group’s Moshannon Valley Correctional Center. As detailed in the Texas report, GEO Group has a record of abuse and mismanagement at both of the CAR prisons it operates in Texas. We ask that anyone with information about the conditions and practices at Moshannon Valley Correctional Center please contact us to share your stories. Only with your help can we shed light on another one of our nation’s shadow prisons.

Email us at info@aclupa.org or call 877-PHL-ACLU (877-745-2258) if you live in the eastern half of the state or 877-PGH-ACLU (877-744-2258) if you live in the western half of the state.

Scott KellyScott Kelly joined the ACLU in February of 2014. He is a recent honors graduate of Columbia Law School, where he received the Milton B. Conford Book Prize for the best essay on jurisprudence.

Mayor Nutter Signs Executive Order Ending ICE Detainers in Philadelphia

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

This slideshow requires JavaScript.

Today Mayor Nutter signed an executive order directing Philadelphia detention facilities not to imprison people for the federal immigration authorities (“ICE”) without a judicial warrant. Because ICE does not routinely obtain judicial warrants to support its detainer requests (also known as “immigration holds” or “ICE holds”), the new policy will effectively put an end to ICE holds in Philadelphia.

The policy change is the result of sustained advocacy by immigrant rights groups, including the ACLU, to limit police cooperation with civil immigration authorities. The ACLU testified before City Council earlier this month that ICE routinely issues detainer requests without sufficient justification, and that honoring ICE detainer requests jeopardizes the safety and constitutional rights of everyone in the community.

RELATED LINKS:

Galarza v. Szalczyk, et al.

ACLU Written Testimony on Detainers

Poli ≠ Migra: Separating Local Policing from Immigration Enforcement

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

Ernesto Galarza (credit: Marco Calderon)

Ernesto Galarza (credit: Marco Calderon)

Earlier this week, Philadelphia took a major step towards disentangling local policing and federal immigration enforcement. Due in part to the efforts of the ACLU, Philadelphia is now poised to become the next city on the list of “no ICE hold” jurisdictions that refuse to use local resources to imprison people for suspected immigration violations.

At a City Council hearing on Wednesday, members of the Public Safety Committee heard testimony from more than two dozen witnesses about the financial and human costs of local cooperation with Immigration and Customs Enforcement (ICE). For hours, immigrants and immigrants’ rights advocates told stories of families ripped apart by deportation. They explained that when local law enforcement agencies open their doors to federal immigration agents, immigrants avoid coming forward to seek police protection, report crimes, and cooperate in investigations out of a fear that the contact with police will result in immigration detention and possibly deportation for themselves and others.

On behalf of the ACLU, I testified about the significant constitutional problems posed by ICE detainers, as highlighted by our lawsuit on behalf of Ernesto Galarza, a U.S. citizen mistakenly held for three days on an ICE detainer.

What are ICE detainers?

An ICE detainer (also known as an “ICE hold” or an “immigration hold”) is a request sent by ICE to a state or local law enforcement agency or detention facility asking the agency to continue holding someone in the agency’s custody to give ICE extra time—sometimes several days—to decide whether to take that person into federal custody and begin immigration court proceedings.

Molly Tack-Hooper,  ACLU-Pa staff attorney, testifies to Philadelphia City Council. Wednesday, March 12, 2014 (credit: A.H. Nishikawa)

Molly Tack-Hooper, ACLU-Pa staff attorney, testifies to Philadelphia City Council. Wednesday, March 12, 2014 (credit: A.H. Nishikawa)

Why is the ACLU opposed to ICE detainers?

The U.S. Constitution guarantees the right not to be imprisoned without probable cause and due process of law. Yet ICE routinely asks local officials to hold people in jail, beyond the time when they should be released, based on nothing more than ICE’s interest in investigating whether they might be subject to deportation. To deprive a person of liberty solely because the government seeks to investigate that person, without requiring any judicial determination of probable cause and without affording any opportunity to challenge the basis for the detention, violates the Constitution and offends fundamental American principles of justice.

ICE detainers also serve as the lynchpin of federal immigration enforcement programs like Secure Communities (“S-Comm”) and the Criminal Alien Program (“CAP”), which rely on state and local police to do ICE’s legwork, inviting police officers to engage in unconstitutional racial profiling and to treat people perceived to be “foreign” differently.

In short, when local law enforcement agencies choose to imprison people pursuant to ICE detainers, this jeopardizes the rights and safety of everyone in the community—including citizens as well as immigrants.

Ernesto Galarza

Back in 2010, the ACLU sued on behalf of Ernesto Galarza, a New Jersey-born U.S. citizen of Puerto Rican descent who was held illegally for three days in the Lehigh County Prison pursuant to an ICE detainer. After Mr. Galarza was arrested (on charges of which he was later acquitted), Allentown police notified ICE of Mr. Galarza’s arrest, believing, due to his ethnicity, that he might be an undocumented immigrant. ICE then issued a detainer to Lehigh County Prison for Mr. Galarza. And Lehigh County honored the detainer, as it always did, because it believed it had no other choice. After Mr. Galarza posted bail, he was held in prison for three additional days, without any explanation, and without an opportunity to demonstrate his citizenship. He was finally interviewed by ICE and released.

The ACLU sued on Mr. Galarza’s behalf, and last week, in a landmark decision, the U.S. Court of Appeals for the Third Circuit ruled that ICE detainers are merely non-binding requests to detain someone, and that because local agencies are not required to comply with ICE detainers, they may be held liable for their role in causing an unlawful detention where there is no constitutionally valid basis for the detainer.

Growing Trend of Refusing to Comply with ICE Detainer Requests

The Galarza ruling has broad implications. A growing number of jurisdictions around the country are choosing to disentangle local policing from federal immigration enforcement by flatly refusing to imprison people based on ICE detainers, or by complying with ICE detainer requests only in limited circumstances. Galarza confirms that localities have a choice about whether to comply with an ICE detainer requests, and warns localities that do choose to honor ICE detainers that they may be held liable for the consequences of their decision to imprison someone pursuant to an unlawful ICE detainer.

Galarza has already had an impact in Philadelphia. At the hearing this week, Mayor Nutter’s Director of Public Safety, Michael Resnick, announced that the mayor plans to issue an executive order directing Philadelphia facilities not to comply with any ICE detainer that is not accompanied by a warrant. Resnick cited the recent Galarza ruling as the basis for adding a requirement of a judicial warrant backed by probable cause. Because ICE does not typically seek out judicial warrants to accompany its detainer requests, the mayor’s proposed policy should effectively put an end to ICE holds in Philadelphia.

As of Wednesday, the mayor is still tweaking his executive order, but I look forward to Philadelphia officially adopting a broad policy that safeguards the rights and safety of all Philadelphians by preventing city agencies from imprisoning anyone else based solely on an ICE detainer request. And hopefully Philadelphia will become a model for the rest of the state, and the country. I would expect nothing less from the City of Brotherly Love.